14 THE BURUNDI CRISIS Did Constitutional Cou≥t misinte≥p≥et p≥ovisions of law on te≥m limits? COMMENTARY BUSINGYE KABUMBA “It is the failure to properly interpret and apply Article 302 that would delay the application of Article 96.” O n April 24, 2015, the Conseil National Pour la Défense de la Démocratie Forces pour la Défense de la Démocratie (CNDDFDD), the ruling party in Burundi, endorsed Pierre Nkurunziza as its candidate to contest the presidential elections. The next day, a number of Burundians took to the streets of Bujumbura to protest this decision. There seems to be no imme- diate end in sight to the unrest. At the root of the crisis lies the question as to the proper interpretation of Article 96 of the Burundi Constitution, which provides: “The President of the Republic is elected by universal direct suffrage for a mandate of five years renewable one time.” According to the opposition, President Nkurunziza is not eligible to stand as a candidate in the 2015 elections, having served two terms as president, since his first election in 2005. The CNDD-FDD, on the other hand, argues that the first term should not be taken into account for purposes of Article 96 since that election was by the National Assembly and therefore not by “universal adult suffrage.” For its part, in a decision handed down on May 5, the Constitutional Court of Burundi favoured the latter view of Article 96. However, the Court’s decision has had little effect in terms of resolving the crisis, with the Burundian opposition dismissing it as politically motivated. Matters have not been helped by the fact that the Vice President of the Court, Sylvere Nimpagaritse, fled the country just hours before the decision was issued. According to Justice Nimpagaritse, at a judges conferencing on April 30, the majority view was that President Nkurunziza was constitutionally barred from standing for re-election. However, as he tells it, the judges had since then come under “enormous pressure and even death threats,” which had resulted in the court’s capitulation to the will of the CNDDFDD. It appears that the 2005 Con- stitution of Burundi must be read in light of the Arusha Peace and Reconciliation Agreement for Burundi (“the Arusha Agreement”), a key milestone in ending the long onflict in that country and perhaps the most important inspiration for the letter and spirit of the Constitution. Indeed, in its decision of May 5, the Constitutional Court acknowledged that “in order to understand the spirit of the Constitution, it is useful to first, understand the document which mostly inspired the drafters of the 2005 Constitution.” The Court also noted that “to establish the intention of the drafters, one may examine the documents which inspired the Burundian drafters” and that it would give “special attention” to the Agreement as “a genuine, unavoidable and indispensable document from which the inspiration was drawn by the Burundian Constitution drafters.” In the same vein, the Court acknowledged that the Arusha Agreement, and in particular that part of it relating to constitutional principles, was the “Constitution’s bedrock” and that whoever violated the main constitutional principles of the Arusha Agreement could not claim to respect the Burundian Constitution. The Arusha Agreement It is to the Arusha Agreement, therefore, that we must first turn to in order to find the true meaning of Article 96 of the Burundi Constitution. Under the preamble of that agreement, the parties recorded their awareness “of the fact that peace, stability, justice, the rule of law, national reconciliation, unity and development were the major aspirations of the people of Burundi” and further affirmed their commitment to “shape a political order and system of government inspired by the realities of [Burundi] and founded on the values of justice, democracy, good governance, pluralism, respect for the fundamental rights and freedoms of the individual, unity, solidarity, mutual understanding, tolerance and co-operation among the different ethnic groups within [Burundi]. In The EastAfrican NEWS MAY 16-22,2015 Article 1 of the Agreement, the Parties accepted as binding five Protocols, which were deemed to form an integral part of the Agreement. These Protocols related to: the nature of the conflict, problems of genocide and exclusion and their solutions (Protocol I); democracy and good governance (Protocol II); peace and security for all (Protocol III); reconstruction and development (Protocol IV) as well as guarantees on the implementation of the Agreement (Protocol V). Protocol II is most directly relevant for our present purposes, as it laid down, the major terms of what came to be the 2005 Constitution of Burundi.” The question of the election of the president was squarely dealt with under Article 7 of this Protocol. In terms of Article 7 (1) (a), the Burundi Constitution was required to provide that save for the very first election of a president, the President of the Republic had to be elected by direct universal suffrage. Under Article 7 (1) (c), for the first election, to be held during the transition period, the president would be indirectly elected as specified in Article 20 (10) of the Protocol. Article 7 (3) further specifically provided that the president would be elected for a term of five years, renewable only once, and that no one could serve more than two presidential terms. Under Article 20 (10) of the Protocol, the first post-transition president would be elected by the National Assembly and Senate sitting together by a majority of two-thirds of the votes. Up to the above point, the matter appears relatively straightforward. Both the letter and spirit of the Arusha Agreement appear to categorically reflect the position that a president of Burundi could serve only two terms. In addition, it was quite clear that the agreed position was that while the president had to be elected by universal suffrage, this requirement would not apply to the first presidential election following the transition, which would be an indirect election. This notwithstanding, for the avoidance of all doubt, this first indirect election would be counted towards the two-term limit, as envisaged by Article 7 (3) of Protocol II. It is important to highlight the terms of Article 3 of the Arusha Agreement, in which the parties committed themselves to “refrain from any act or behaviour contrary to the provisions of the Agreement,” as well as to “spare no effort to ensure that the said provisions are respected and implemented in their letter and spirit in order to ensure the attainment of genuine unity, reconciliation, lasting peace, security for all, solid democracy and equitable sharing of resources in Burundi.” What, then, is the problem? It seems to be that the letter of the Arusha Agreement was rather inelegantly transposed into the Burundian Constitution. In the place of the more extended, clearer and tighter provisions of Article 7 of Protocol II of the Arusha Agreement, the Burundi Constitution has the one sentence in Article 96: “The President of the Republic is elected by universal direct suffrage for a mandate of five years renewable one time.” A little more of the letter, and spirit, of the Arusha Accord, is tucked away in Article 302, appearing towards the end of the Constitution under Title XV of that document According to Article 302, “exceptionally, the first President of the Republic of the post-transition period is elected by the [elected] National Assembly and the elected Senate meeting in Congress, with a majority of two-thirds of the members.” To be sure, Article 7 of Protocol II of the Arusha Agreement reads more clearly than Articles 96 and 302 of the Burundian Constitution. However, does this mean that Whoever violated the main consti-tutional principles of the Arusha Agreement could not claim to respect the Burundian Constitution.” Article 7 of Protocol II means something other than Articles 96 and 302 of the Constitution? In my opinion, it does not. One of the cardinal rules of constitutional interpretation is that a constitution must be read as an integrated whole, to ascertain its broad purpose and meaning, rather than in a piecemeal fashion that could lead to a result that is inimical to its broader architecture. A reading of Articles 96 and 302 should lead to the same result as that of Article 7 of Proto